Probate-Only vs Expanded Estate Recovery: Which States Can Reach a Trust

The short answer: If your state recovers from the probate estate only, assets that pass outside probate — including a funded revocable living trust — are usually out of reach. If your state uses the expanded definition, the state can follow that same trust, plus joint accounts, life estates, and transfer-on-death deeds. So the probate only vs expanded estate recovery question is really a state-of-residence question, not a paperwork question. Check your state’s rule first, then plan.

Probate Only Vs Expanded Estate Recovery: The Key Differences

Federal law sets the floor. Under 42 U.S.C. § 1396p(b), states must seek repayment from the estates of people who were 55 or older and received nursing facility care, home and community-based services, or related hospital and drug care. The recovery is limited to what Medicaid actually paid.

The law then offers an option. Section 1396p(b)(4)(A) defines “estate” as the probate estate. Section 1396p(b)(4)(B) lets a state expand that definition to any property the person held any legal title or interest in at death. Roughly half the states took the expansion. That single choice is the whole probate only vs expanded estate recovery divide.

Here is how the two approaches compare on the things families actually ask about.

Factor	Probate-only state	Expanded-estate state
What the state can reach	Assets that pass through probate court	Probate assets plus most non-probate assets
Funded revocable living trust	Typically out of reach	Typically reachable
Joint tenancy, POD/TOD accounts	Typically out of reach	Typically reachable
Life estate in the home	Ends at death; usually safe	Statute may keep it alive for recovery
Who pays	The estate, before heirs are paid	The estate, or the person who received the asset
Cost to the family	Normal probate fees; often 3%–7% of estate value	Probate fees plus possible claim defense
Speed	Claim resolved inside probate, often 6–12 months	Claims can arrive after probate closes
Probate impact	Avoiding probate can avoid recovery	Avoiding probate does not avoid recovery
Tax impact	Heirs still get a stepped-up basis under IRC § 1014	Same step-up; recovery is a debt, not a tax
Example states	California, Texas, New York, Pennsylvania	Ohio, Wisconsin, Washington, Minnesota

When Each Option Is the Better Choice

Families rarely get to pick their rule. Your state picks it for you. So the real choice is which planning tool fits the rule you already live under. That is where probate only vs expanded estate recovery becomes a practical decision instead of a legal debate.

In a probate-only state, avoiding probate does real work. A funded revocable living trust, a beneficiary deed, or a payable-on-death account can move assets outside the probate estate. For example, California limits repayment to assets subject to probate that the person owned at death. In most cases, a well-funded trust in that setting keeps the home out of the claim.

In an expanded-estate state, the same trust does not stop the claim. Wisconsin’s statute reaches revocable trusts, joint tenancy, TOD deeds, and life estates. Families there typically look at different tools instead. Options may include an irrevocable trust set up well before care begins, a properly drafted spousal plan, or a special needs trust. Those choices carry real trade-offs, so talk them through with a licensed elder law attorney.

The Risks and Costs to Watch For

The biggest risk in the probate only vs expanded estate recovery comparison is assuming the wrong rule applies. People move. A plan built for a probate-only state can quietly stop working after a move to an expanded state. Typically, nobody notices until a claim letter arrives.

The second risk is timing. Irrevocable transfers usually trigger Medicaid’s 60-month look-back period. A transfer made inside that window can create a penalty period of ineligibility. As a result, a rushed transfer can cost more than the recovery it was meant to avoid.

There are also protections worth knowing. Recovery is deferred while a surviving spouse is alive, or while a child under 21, or a blind or disabled child of any age, survives. Every state must offer an undue hardship waiver. However, hardship rules and deadlines vary widely, so read the notice carefully.

How This Varies by State

State law controls the details, including exact dollar floors below which a state will not file a claim. The table below shows how far apart the rules sit. These figures come from state statutes and agency pages, and they can change, so verify with your state before acting.

State	Recovery scope	Can it reach a revocable trust?	Concrete figure to know
Texas	Probate only	No	No claim if the estate is $10,000 or less, or Medicaid costs are $3,000 or less
California	Probate only	No	Notice of Death due to DHCS within 90 days of death
Ohio	Expanded	Yes	Fiduciary must notify Medicaid within 30 days of filing the estate action
Wisconsin	Expanded	Yes	45 days to request a fair hearing after the department’s affidavit is sent
Minnesota	Expanded	Limited	Life estates and joint tenancies created on or after August 1, 2003 do not end at death
Washington	Expanded	Yes	Recovers from the estate and from non-probate assets defined by RCW 11.02.005

Notice how Minnesota sits in the middle. Minnesota Statutes § 256B.15 extends recovery to life estates and joint tenancy interests, with dated limits. Washington’s statute sweeps in non-probate assets more broadly. That middle ground is why probate only vs expanded estate recovery is best answered by reading your own state’s code, not a national summary.

Frequently Asked Questions

Does a revocable living trust protect my home from Medicaid?

It depends entirely on your state’s rule. In a probate-only state, trust assets skip probate, so they generally fall outside the claim. In an expanded state, the trust is reachable, and many families there look at other tools with an attorney.

How do I find out which rule my state uses?

Start with your state Medicaid agency’s estate recovery page and your state’s statute site. Search for your state code plus “estate recovery.” You may also call your state probate court’s self-help line for plain-English guidance.

Can the state take the house while my mother is still living there?

No. Recovery only happens after the Medicaid recipient dies. Even then, it is deferred while a surviving spouse is living, or while a child under 21 or a disabled child survives, and a hardship waiver may apply.

Sources & How to Verify

The information on this page is drawn from official government and court sources. Estate, probate, and tax rules change, so always confirm the exact figure with your state’s court, statute, or a licensed attorney.

• IRS — Estate Tax: irs.gov — federal estate-tax rules and exemption
• Find free legal help: lawhelp.org — free and low-cost legal aid in your state
• Cornell Legal Information Institute: law.cornell.edu/wex — plain-English legal definitions
• Your state probate code & court self-help portal: search “[your state] probate code” and “[your state] probate court self-help” for the exact law and forms

Content last reviewed September 2026. If you notice outdated information, please contact us.

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• Wills & Probate by State (All 51 Jurisdictions)
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• Comparison Guides
• Estate Planning Glossary

Informational only — not legal or tax advice. Wills Probate Guide is an independent educational resource, not a law firm, tax advisor, or financial planner, and this page does not provide legal or tax advice. Estate, probate, and tax rules vary by state and change over time, so always verify the exact rule with your state’s probate code, your local probate court’s self-help portal, or a licensed attorney. For urgent matters like an active probate or a tax deadline, contact a licensed attorney in your state right away.